Cardell v. Tennessee Electric Power Co., 7658.

• Citation: 79 F.2d 934
• Decision Date: 14 November 1935
• Docket Number: No. 7658.,7658.
• Parties: CARDELL v. TENNESSEE ELECTRIC POWER CO.
• Court: U.S. Court of Appeals — Fifth Circuit

79 F.2d 934 (1935)

CARDELL v. TENNESSEE ELECTRIC POWER CO.

No. 7658.

Circuit Court of Appeals, Fifth Circuit.

November 14, 1935.

Reuben R. Arnold, of Atlanta, Ga., for appellant.

G. E. Maddox, of Macon, Ga., for appellee.

Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.

HUTCHESON, Circuit Judge.

This appeal is from a judgment on a directed verdict. The suit was for damages for the negligent killing of plaintiff's husband in a collision between his truck and a bus owned by defendant.

Plaintiff pleaded that while plaintiff's decedent, in the exercise of due care, was driving his truck along a paved public highway in the state of Tennessee, some distance in the rear of and following the defendant's bus, the bus suddenly and negligently, without warning or apparent reason therefor, turned to the left and came to a stop on the pavement so suddenly and so violently that plaintiff's decedent, though in the exercise of due care, could not avoid a collision with it, resulting in the wrecking and overturning his truck and its and his destruction by fire.

In addition to the negligence in fact thus relied on, appellant pleaded and relied as negligence in law, on section 2690, Tennessee Code of 1932.¹

The District Judge, of the opinion that the statute quoted had no application, sustained defendant's demurrer to so much of the petition as pleaded it. This ruling was duly excepted to and error assigned on it.

Answering to the merits, defendant alleged that the accident occurred because, while its bus was slowing down for a passenger, the truck driven by plaintiff's decedent came up at a rapid rate of speed and recklessly and negligently ran into the rear end of the bus.

It further alleged that at the time the truck was struck the bus was slowing down, preliminary to a stop for a passenger some distance ahead, and that it had not yet come to a full stop. That its bus was brilliantly lighted; that the road where the collision occurred was straight for a half mile or more, and that if the driver of the truck had been in the exercise of any care whatever he could and should have seen the bus in front of him, and should have seen it was slowing down in plenty of time to avoid striking it. That the truck was far enough behind the bus, when the bus commenced to slow down, for it to have stopped before reaching the bus, had the driver exercised any care whatever, but that no effort was made to slow the truck down or pass the moving bus until it was too late to avoid the collision, and that it occurred solely because of his negligence. In addition, it pleaded that the truck was, in violation of the statutes of Tennessee, going at more than 35 miles an hour at the time of the collision.

On these pleadings the case went to trial. Plaintiff offered the testimony of three eyewitnesses, Rogers, Jay, and Bolden. The first two were in Rogers' car coming up behind, and traveling faster than the truck and bus. In the way of overtaking and passing truck and bus they were in a position as they came up to see, and did see them both. They saw what each was doing and what occurred before and just at the time of the collision. Rogers' testimony is that when he first saw the two vehicles the bus was some 75 or 100 feet ahead of the truck, when they went up the grade toward the scene of the accident, the truck was gradually gaining on the bus. "I was running 40 or 50 miles an hour and was getting right smart closer. At the time of the collision I would say I was 100 to 125 feet behind the truck. I was running about 40 or 45 miles an hour and the bus and truck were each making about the same speed, 30 miles an hour. From the time I first sighted them I made up almost half the distance between them and me. As to noticing any trouble, I saw a slight shift of the lights of the front vehicle toward the center of the road, and immediately a second later, the truck shifted and the crash was on. The front vehicle made a turn to the left, a sudden turn. The truck then shifted immediately to the left. The lights of the bus shifted to the left and then the truck made a full turn." He testified he did not see the bus stop. He could not see any effort to stop; he did not notice the bus slow down. It looked like as if there was a shifting of lights down on the edge of the road.

Jay, sitting in the back seat of Rogers' car, testified substantially the same as he did as to the speed of the vehicles and their distance apart. He further testified: "The first thing I noticed I saw the red back light of the bus show up; that signalled stop. I saw the stop light flare up suddenly. When it did the truck light swerved to the left. Immediately the back light lit up the truck swerved to the left. I did not see the driver of the bus make any signal before the stop light appeared. I was facing the bus. The first thing I noticed was when the red stop light went on on the bus. At the time the stop light went on the truck was about 50 feet behind the bus. As to whether the bus slowed up I could not say. I saw the stop light go on and the bus swerve to the left."

The...